IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013477 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be changed from spouse to former spouse and that she be paid the SBP annuity.  

2.  The applicant states that she was informed on 20 July 2009 that she was supposed to elect to receive the SBP annuity within one year of her divorce.  She states that she and the FSM were not aware of this requirement.  She continues by stating that she was paid three months of annuity, but it is now being requested to be returned.  The applicant argues that without this income, she is without sufficient funds.  

3.  The applicant provides the following documents in support of her application:

a. Marriage certificate;
b. Self-authored statement;
c. Final Judgment and Decree;
d. Final Order of Separation Agreement;
e. Separation Agreement;
f. Durable Power of Attorney for Finance;
g. Death certificate;
h. DA Form 4240 (Data for Payment of Retired Army Personnel);
i. DD Form 2894 (Designation of Beneficiary Information);
j. Letter, dated 17 September 2009, from the Defense Finance and 
Accounting Service (DFAS) addressed to a congressman;
k. Letter, dated 10 September 2009, from DFAS;
l. Letter , dated 13 July 2009, from DFAS;
m. DD Form 2788 (Waiver/Remission of Indebtedness Application);
n. DD Form 214 (Certificate of Release or Discharge from Active Duty); and
o. Last Will and Testament.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 12 July 1943.  He and the applicant were married on 26 February 1966.  After having had prior active and inactive service, the FSM was ordered to active duty as a Reserve commissioned officer on 1 August 1979.

2.  At the completion of 20 years of service, the FSM retired from active service on 1 August 1984.  On an unknown date, the FSM completed a DA Form 4240 and elected to participate in the SBP for spouse coverage, full base amount.  The applicant is listed as his spouse.  

3.  In August 1993, the FSM completed a Last Will and Testament in which he named the applicant as Executrix of his will.

4.  On 25 March 1999, the FSM and the applicant entered a Separation Agreement.  The SBP is not mentioned in the Agreement.  

5.  The FSM and the applicant were divorced on 12 August 2004.  The divorce decree incorporated the above mentioned Separation Agreement by reference.  

6.  The applicant was designated as the FSM’s Durable Power of Attorney for Finance on 25 February 2009.

7.  The FSM died on 27 April 2009.  His death certificate indicates he was divorced.  

8.  In a 13 July 2009 letter, DFAS informed the applicant that an overpayment of her SBP and/or Retirement Serviceman’s Family Protection Plan (RSFPP) annuity had been identified for the period 1 April 2009 to 30 June 2009 in the amount of $3,452.40.  She was advised of her eligibility to submit a request for a waiver for the overpayment.  On 22 July 2009, the applicant completed a DD Form 2789 requesting a waiver of the $3,452.40 indebtedness resulting from the erroneous payment of SBP benefits.  

9.  On 10 September 2009, DFAS denied the applicant’s request for a waiver.

10.  In an 8 December 2009 email, DFAS informed a staff member of this Board that SBP premiums were deducted from the FSM’s retired pay until the time of his death.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.

12.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

14.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully reviewed.  There is sufficient evidence on which to grant the relief requested.

2.  It was Congress's intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM throughout his military career.  After their divorce in August 2004, the FSM continued to pay SBP spouse coverage premiums until his death even though he was not required to do so.  His death certificate showed his marital status as divorced.  

3.  Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, his former spouse, it would be equitable to correct his records to show he changed his SBP spouse coverage to former spouse coverage within a timely manner and that she be paid the SBP annuity.  

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing the FSM had requested that his SBP coverage be voluntarily changed from spouse coverage to former spouse coverage within a timely manner; and 

   b.  paying the applicant the SBP annuity retroactive to the date the SBP annuity overpayment incurred. 




      _______ _   X______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090013477





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013477



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1